Cole v. Village of Culbertson
| Decision Date | 26 February 1910 |
| Docket Number | 15,915 |
| Citation | 125 N.W. 287,86 Neb. 160 |
| Parties | JOHN W. COLE, APPELLANT, v. VILLAGE OF CULBERTSON ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Hitchcock county: ROBERT C. ORR JUDGE. Affirmed.
AFFIRMED.
John W Cole and Morlan, Ritchie & Wolff, for appellant.
Boyle & Eldred, contra.
The petition alleges substantially that the defendant village of Culbertson is a municipal corporation under the laws of the state of Nebraska, and that the other defendants are the duly elected, qualified and acting trustees of said village; that at the time of filing his petition plaintiff was, and for many years prior thereto had been, a resident, elector property owner, and taxpayer of said village; that in the fall of 1907 he purchased a brick building of the value of $ 2,500, and at an expense of $ 300 equipped one of the rooms in said building as a billiard and pool-hall, and thereupon opened said room for the purpose of having therein a billiard and pool-hall; that said billiard and pool-hall have been paying plaintiff a large revenue and income of at least $ 50 a month; that in running said billiard and pool-hall plaintiff has complied with the laws of the state of Nebraska, and at all times conducted said billiard and pool-hall in an orderly, quiet and legitimate manner; that defendants, well knowing the expense that plaintiff had been to in the premises, on the 3d day of February, 1908, passed an ordinance prohibiting the operation, keeping and controlling of a billiard or pool-hall in said building for hire; that said ordinance was passed by defendants for the sole purpose of depriving plaintiff of his property and property rights in his said pool and billiard-hall and apparatus thereto belonging; that said billiard and pool-tables and fixtures have no value except for the purpose of being used as such; that the ownership of the billiard and pool-tables and the ownership, running and management of the billiard and pool-hall is now, and for many years past has been, recognized by the laws of this state, and the decisions of the court of last resort of this state, to be "a legitimate and lawful business, except that minors shall not be permitted to play or be and remain upon the premises"; that plaintiff invested his money in good faith in his pool and billiard-tables, and established a pool and billiard-hall in said village in reliance thereon; that said ordinance is unconstitutional because it contravenes section 1, art. XIV of the constitution of the United States, and also contravenes section 3, art. I of the constitution of the state of Nebraska, in so far as said ordinance seeks to prohibit plaintiff and deprive him of the use of his said billiard and pool-hall and the tables and fixtures thereunto belonging, and because its intent and purpose is to deprive plaintiff of a vested legal right without due process of law; that, notwithstanding the premises, defendant trustees are threatening, under color of authority derived from said ordinance, to close up and prohibit plaintiff from operating his said billiard and pool-hall, and are threatening to and will, unless restrained by order of the court, prohibit and suppress plaintiff's said business, and will destroy plaintiff's property and business and the value thereof, and are threatening to and will arrest plaintiff and his employees and harass and annoy them, under color of authority derived from said ordinance, and will institute many criminal and other suits against plaintiff and those operating and conducting said pool-hall, and wholly destroy the value of his said property, and deprive him of the income therefrom to plaintiff's irreparable injury, loss and damage, and that plaintiff has no adequate remedy at law. The prayer is for an injunction restraining the defendant village and its trustees from in any manner seeking to enforce said ordinance or in any manner instituting any proceedings to enforce the same, or from in any manner interfering with the plaintiff or his employees in conducting or operating said pool and billiard-hall, or from commencing any criminal prosecutions under said ordinance against plaintiff or any person or persons conducting said business as employees of plaintiff, or in any manner interfering...
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